[WSBARP] will language interpretation

Tue Jul 9 10:37:30 PDT 2019

Look at RCW 11.12.120 also.  If “the survivors of them” is a condition of survivorship (in my opinion, it is), then RCW 11.12.121 (1) says the gift lapses and falls into the residue.   In my earlier reply, I said I often draft “I give $____ to A and B, or the survivor of them.” In such cases, I also follow it with “If neither of them survives me, this gift shall lapse” to ensure the anti-lapse statute doesn’t come in to save the gift if that’s my client’s intent.

RCW 11.12.120<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.120>
Lapsed gift—Procedure and proof.

  1.  If a will makes a gift to a person on the condition that the person survive the testator and the person does not survive the testator, then, unless otherwise provided, the gift lapses and falls into the residue of the estate to be distributed under the residuary clause of the will, if any, but otherwise according to the laws of descent and distribution.

Regards,

Doris Eslinger
Eslinger Law Office
(425) 451-3237

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Tuesday, July 09, 2019 9:12 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] will language interpretation

For what it's worth, here is my impression. But the bottom line is, that Will is ambiguous and I think it could be solidly argued for or against the sisters' descendants.

I think Paragraph A is a gift of 20% of the estate, 10% to "each of my sisters." The use of "share and share alike" does contradict that, but it's one of those stock phrases that I think gets misused much more often it clarifies intent. So, I lean toward favoring the "each" as more meaningful than the "share and share alike."

With regard to a pre-deceased sister, I think the phrase "survivors of them" in Paragraph A means the surviving sister inherits the entire 20%, and the deceased sister's descendants do not receive her 10% if one of the sisters survives. However, the paragraph must be read together with RCW 11.12.110<https://app.leg.wa.gov/RCW/default.aspx?cite=11.12.110> if both sisters have pre-deceased. If they are both gone, then the paragraph is silent so I think that statute is triggered and each deceased sister's descendants receives that sister's 10% by right of representation. Furthermore, if either or both of the predeceased sisters died with no issue, I think that sister's 10% falls back into the residue of the estate because paragraph A does not provide for that possibility and there is no statute to fill in the gap. I recognize this is kind of a strange combination of provisions--all 20% to the sisters only and cut off their descendants unless they both predeceased, in which case give it to their descendants--but I think that's the result of the faulty language in the Will. (Contrarily, one could argue that the phrase "survivors of them" is intended to cut off the effect of RCW 11.12.110 which statute begins, "Unless otherwise provided," and therefore if both sisters predecease the entire gift lapses.)

Re rules of construction, I have made that argument, about interpreting ambiguous language in one paragraph, A, in light of clearer language in other paragraphs, B and C: that B and C show the drafter knew how to make such a provision, and therefore the failure to use that language in A demonstrates that something different was intended. But I think it's a weak argument unless the Will as a whole shows that it was capably and tightly drafted. If a Will's language wanders, varies from paragraph to paragraph, has typos, etc., then I would attribute variation in language to inconsistent (sloppy) drafting more than intentional distinction between paragraphs.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rich McEntee
Sent: Tuesday, July 09, 2019 8:09 AM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] will language interpretation

Hello listmates

I was contacted by a potential client who is looking to commence a probate. PC provided a will that has some dispositive provisions that I am not certain I have seen before and am not clear what exactly what happens when an beneficiary predeceases. The language reads as follows (the facts as I understand them are that both sisters predeceased the testator and both of testator’s children survived him.)

A.        I leave each of my sisters Jane Doe and Joan Doe, share and share alike, ten percent (10%) of my estate. Does this language give each 10% or do they share 10%? (the paragraph continues) If either of my sisters does not survive me, then that beneficiary’s share shall be divided between the survivors of them. Does this mean that is one sister predeceases the testator then her share goes to the other sister? Or does this mean that it goes to the deceased sister’s heirs? The will does not speak to what happens if both predecease? which may be the case as they are remote from the immediate family of the testator.

The next paragraphs goes on to state

B.        I leave my son, John Jones, and my daughter, Jane Jones, share and share alike, the balance of my estate. If either of my children do not survive me, but leave issue surviving me, then that child’s share shall go to his or her issue, equally, per stripes.

C.        If either of my children do not survive me and leave no issue that survive me, then that child’s share shall go equally to my other child if he or she survives me and if neither of them survives me, to his or her issue, per stripes, if his or her issue survive me.

In thinking about rules of construction, do paragraphs B and C tell us how to interpret paragraph A. i.e. if testator intended sister’s heirs to take, then it is clear that he knew how to say so?

Any guidance is appreciated.

Thank you
Rich

RICH McENTEE
McENTEE LAW OFFICE
3800 Bridgeport Way W, Ste A411
University Place, WA 98466
253.227.9894(m)
jrmcentee at gmail.com<mailto:jrmcentee at gmail.com>

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